Supreme Court, Nassau County, February 2, 2018

Martin Clearwater & Bell LLP, East Meadow, for North Shore University Hospital Center for Extended Care and Rehabilitation and others, defendants.

Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, for Winthrop University Hospital and another, defendants.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, for Baghdassarian Bagdig, M.D., defendant.

Ronemus & Vilensky, New York City, for plaintiff.

The motion (sequence No. 002) by defendants North Shore University Hospital Center for Extended Care and Rehabilitation et al. (North Shore), the motion (sequence No. 003) by defendants Winthrop University Hospital and Elliot Row, M.D., and the motion (sequence No. 004) by defendant Baghdassarian Bagdig, M.D. for an order pursuant to CPLR 3212, dismissing the complaint against the defendants and granting summary judgment in their favor, are consolidated for disposition and decided as follows:

This is an action to recover damages for the personal injuries sustained by decedent Loretta Conroy as a result of the purported medical malpractice committed by the defendants for their collective and individual failure to properly and timely diagnose and treat the decedent. The departures from good and accepted medical practice claimed by the plaintiff were set in motion when the decedent tripped at home over her husband's oxygen tube and was brought to defendant Winthrop University Hospital on July 31, 2012, complaining of left hip pain. The decedent was admitted on August 1 and diagnosed with abrasions, ecchymosis, and a left hip dislocation; a closed reduction of the decedent's left leg was subsequently performed by defendant Dr. Row, and her lower left leg was placed in an immobilizer. Plaintiff claims that the decedent was given morphine for the extreme pain she felt, and that prior to her discharge on August 4th to defendant North Shore Stern Family Center for Extended Care and Rehabilitation (Stern), decedent's skin was not protected in the immobilizer, and that no skin treatments for that area were ordered, administered or performed. Upon admission to Stern, the decedent [*3]allegedly had blisters on the back of the left knee; the immobilizer was purportedly not removed or adjusted or padding placed on the{**59 Misc 3d at 518} skin. On August 6, the decedent suffered from left lower extremity burning, edema and open blisters on the calf, and after her condition worsened, she was transferred to the emergency department of defendant North Shore University Hospital and admitted into the hospital with left leg cellulitis, where she remained until August 22 when she was discharged back to Stern. The discharge summary stated that the decedent's brace was "ill fitting and caused skin breakdown and she developed a cellu[li]tis of the lower extremity." The decedent was discharged from Stern on October 16.

The principles of law which this court must apply to the motions at bar for summary judgment in favor of a defendant in a medical malpractice action remain the oft-cited burden shifting analysis most recently reiterated by the Court of Appeals in Pullman v Silverman (28 NY3d 1060, 1062 [2016]):

"It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie 'showing requires denial of the motion, regardless of the sufficiency of the opposing papers' (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Establishing entitlement to summary judgment as a matter of law requires the defendant to 'rebut[ ] with factual proof plaintiff's claim of malpractice' (Alvarez, 68 NY2d at 325). '[B]are conclusory assertions . . . with no factual relationship to the alleged injury' are insufficient to 'establish that the cause of action has no merit so as to entitle defendant[ ] to summary judgment' (Winegrad, 64 NY2d at 853)."

In his concurring opinion in Pullman, Judge Fahey noted that there is a "split" among the Departments of the Appellate Division over "the standard governing the shifting of burden in a medical malpractice summary judgment motion" (Pullman v Silverman, 28 NY3d 1060, 1063 [2016, Fahey, J., concurring]) that was not resolved by the majority in Pullman. The jurisprudence in the First, Third and Fourth Departments is exemplified by the First Department's decision in Pullman:

"[a] defendant in a medical malpractice action establishes prima facie entitlement to summary judgment when he establishes that in treating{**59 Misc 3d at 519} plaintiff he did not depart from good and accepted medical practice or that such departure did not proximately cause plaintiff's injuries. Once a defendant doctor meets that burden, plaintiff must rebut by showing with medical evidence that defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged" (Pullman v Silverman, 125 AD3d 562, 562 [2015] [citation omitted and emphasis added]).

In contrast to the burden placed on the plaintiff in those Departments to prove both a departure and that the departure was a proximate cause of the plaintiff's injury, the Second Department has held

"since 2011 that if 'a defendant physician, in support of a motion for summary judgment, demonstrates only that he or she did not depart from the relevant standard of care, there is no requirement that the plaintiff address the element of proximate cause in addition to the element of departure' (Stukas v Streiter, 83 AD3d 18, 24-25 . . . )" (Pullman v Silverman, 28 NY3d 1060, 1063 [2016, Fahey, J., concurring] [citations omitted and emphasis added]).

Thus,

"[o]nly if the defendant meets the prima facie burden of proof as to the lack of a deviation from the standard of care or the absence of proximate cause, or both, does the burden shift to the plaintiff to raise a triable issue of fact in opposition. As discussed in Stukas v Streiter, 'there is no good reason to require the opposing party to rebut or address any element or theory other than that raised by the moving party' (Stukas v [*4]Streiter, 83 AD3d at 26)" (Bongiovanni v Cavagnuolo, 138 AD3d 12, 17 [2016] [citations omitted and emphasis added]).

Regardless of whether the Court of Appeals' standard or the Second Department's less burdensome standard is applied to the motions at bar, this court finds that each of the moving defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by failing to tender sufficient evidence eliminating material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; Ortiz v {**59 Misc 3d at 520}Chendrasekhar, 154 AD3d 867, 869 [2017]; Barlev v Bethpage Physical Therapy Assoc., P.C., 122 AD3d 784 [2014]). The defendants' expert's ultimate assertions are speculative (e.g. Dr. Tyler—"[t]he etiology of the blistering of [the decendent's] skin is speculative at best," and Dr. Axelrod—"[t]here are many causes of blistering"), and cannot be given probative weight in support of their motions (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Even assuming arguendo that the moving defendants established prima facie their entitlement to judgment in their favor as a matter of law, the plaintiff raised inter alia a triable issue of fact, through her expert's sworn opinion, as to whether the defendants departed from good and acceptable medical practice by failing to properly treat the decedent during the time within which the decedent was in their care, and if so, whether such departure was a proximate cause of plaintiff's injuries (see Reustle v Petraco, 155 AD3d 658, 660 [2017]; Gray v Wyckoff Hgts. Med. Ctr., 155 AD3d 616, 618 [2017]). Moreover, "[c]onflicting expert opinions raise credibility issues which are to be resolved by the factfinder" or factfinders (see Stucchio v Bikvan, 155 AD3d 666, 667 [2017]).

Accordingly, the three motions by the defendants for an order granting summary judgment in their favor are denied.